Ballot measures in the courts: Proposition 8 and Romer v. Evans

This 2008 photo is of a protest against California’s Proposition 8 in Washington, D.C. A federal court’s declaration this week that Proposition 8 is unconstitutional makes California a most unusual case.

Assistant professor of sociology at Trinity University in San Antonio and author of the forthcoming book Gay Rights at the Ballot Box

Just a few days ago the 9th U.S. Circuit of Appeals struck down Proposition 8, the same-sex marriage ban passed by California voters in 2008. Many political pundits have predicted this will turn into a Supreme Court case as early as next year.

This case reminds me a lot of Romer v. Evans, which the appeals court this week indeed used as the foundation for its argument that Proposition 8 violates the Equal Protection Clause.

Romer v. Evans is the only other case in which the Supreme Court ruled on a statewide ballot measure, and this ruling dramatically changed the nature of ballot measures in the United States. Colorado Amendment 2 created a statewide law that not only eliminated any existing rights for lesbians, gays, and bisexuals but also prohibited any future law from being passed. It was about making sexual minorities strangers to the laws, unable to gain any future redress. The passage of Amendment 2 in 1992 inspired Religious Right ballot measures across the country. Between 1993 and 1996, the anti-gay Religious Right attempted initiatives like Amendment 2 in 13 states and over 30 cities and towns across the country. After Romer v. Evans in 1996, the use of these ballot measures declined dramatically. They were only attempted on a very limited, local level, and then finally abandoned.

The case of California is unusual. I’m not certain this federal court of appeals will impact marriage bans in the same way as Romer v. Evans. California is the only state in which state courts ruled that denying same-sex couples the right to marry is unconstitutional; then same-sex couples were then allowed to marry for several months; and then voters passed a constitutional amendment to ban same-sex marriage. There have been two other states, Hawaii and Alaska, whose state courts ruled on the constitutionality of denying marriage to same-sex couples and voters passed a law to ban same-sex marriage. And in Maine, legislators legalized same-sex marriage, but voters vetoed it through a referendum. But there never was a period in which same-sex marriage was legal in these states. A ruling on Proposition 8 is highly unlikely to reverse the dozens of constitutional amendments that have been passed by voters in the last decade that ban same-sex marriage.

However, it could re-establish same-sex marriage in California, which would provide same-sex marriage rights to many couples and protect those rights from encountering challenges at the ballot box. It might also prevent states in which same-sex marriage was established through state courts—such as Massachusetts and Iowa—from rescinding these rights at the ballot box. At the moment the LGBT movement spends precious money and time fighting to keep same-sex marriage from going on the ballot in these states. Not only do activists have to fight for same-sex marriage to become legal, but they have to also spend time and energy fighting for it to remain legal.

Even with these limitations, there’s something important symbolically about overturning Proposition 8—the one ballot measure that has captured the attention of the American public like no other one.

From the NOH8 campaign to protests across the country, overturning Proposition 8 is a sign of progress, of change, of taking back a lost victory.


Amy Stone is author of Gay Rights at the Ballot Box (March 2012) and assistant professor of sociology at Trinity University in San Antonio.

“Amy L. Stone crafts a compelling, deeply textured portrayal of the more than 200 anti-gay ballot campaigns in the U.S. since 1974. Through interviews with movement leaders and other sources, Stone deftly analyzes the tension between winning campaigns and building a sustainable movement, between national, urban activists and local, rural communities, as well as debates over tactics and messaging. Gay Rights at the Ballot Box is essential reading for anyone seeking to understand the central, disturbing role anti-gay politics has played in contemporary U.S. politics.”
—Sean Cahill, Ph.D., Fenway Institute and New York University

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